from the but-of-course dept

We've seen it for years: the legacy recording industry insists that it needs stronger and stronger "enforcement" and laws in order to stop infringement. Yet, every time it gets its wish, it doesn't have any long term impact on infringement, and absolutely no impact on sales. In other words, more enforcement doesn't seem to help the bottom line at all. Instead, the one thing that does seem to get people to open their wallets and pay is innovation in the form of useful services that successfully compete against piracy by providing a better service. And yet... the history of those innovative services is littered with corpses killed off by ridiculously high demands from the labels for licenses that have no basis in reality. As we've noted time and time again, the legacy labels always seem to overvalue the content and undervalue the services that people want. We see silly claims like that Apple is doing nothing but hosting some songs on its servers.

But good services are the key to getting people to actually go to authorized means of acquiring and listening to music. Unfortunately, there is a very small number of such services, in large part because of these crazy licensing demands. David Meyer, over at GigaOm, highlights how Wahwah.fm has shut down due to the licensing demands of labels, saying that they just couldn't build a sustainable business at the rates demanded. While Stuart Dredge correctly notes that there are a number of issues at play, including a perhaps less-than-stellar takeup from users, the licensing costs certainly couldn't have helped. For a startup like Wahwah that is figuring out the right model, the fact is that they don't have much runway to experiment and find the model that works, because the licensing demands are almost impossible to afford unless you've raised a ton of money that you want to flush away.

Plenty of startups would love to build a new business offering licensed, legitimate music services, but they're scared off by the hostility of the old industry to anyone wishing to build a useful service. The end result is that the legacy industry and the RIAA are responsible for prolonging the problem, by not enabling new innovators to build the kinds of services that successfully compete against piracy.

from the urls-we-dig-up dept

The successful landing of NASA's Curiosity rover on Mars will hopefully be followed by several years of fascinating data collection about our planetary neighbor. The mission has already gathered tons of useful radiation measurements on its journey that will give scientists a better idea of what kind of radiation levels a future manned mission would face on a similar trip to Mars. Here are just a few other interesting Mars-related missions to peruse while Curiosity performs its self-diagnostics before roaming around the surface of Mars.

from the we-need-more-of-this dept

This is a guest post from James Harknell about an event he's putting on that we thought would be of interest to folks who like Techdirt

Anyone who is a reader of Techdirt knows that we are in a time of publishing
disruption -- one that has the potential to cause a huge repressive backlash to this
wonderful thing we now call the Internet. Everyone from governments,
legacy publishing companies, and large IP and patent warehouses are trying to
figure out a way to clamp down on the ability for new business models, and even
regular people, to compete using this new egalitarian international distribution
system. It simply caught them entirely by surprise, and now they want to kill it or
regulate it to their sole advantage.

So how do you fight back against this looming threat? Like Techdirt and many other
rallying websites, you bring people together to talk and build a strong community
of informed creators and fans. Mike and the other contributors to this site are doing
an excellent job of doing this online, but there is also a benefit to physically bringing
people together to discuss these issues and work directly as a community.

This is part of why we created the yearly event Intervention. Onezumi and I started Intervention (a combo of the
words "Internet" + "Convention") in 2010 as an outgrowth of our own online work
in webcomics -- an area of internet creativity that has led
to multi-million dollar business entities and phenomenal
crowdsourced kickstarter campaigns, and has made many
fully self-employed independent artists a living in its short history. While many
other types of events have online artists as guests, and also some related
programming, none were specifically designed around the needs of the DIY and
indie online artist crowd.

Besides the combo of words that created the name Intervention, we chose the
name for exactly what it represents -- an Intervention to both the business world
and the creative world; a notice to those who refuse to acknowledge that things
have changed and business adaption is needed for survival, and a call to action
to artists who feel that they aren't good enough or capable enough to succeed on
their own. This is your Intervention, a yearly place for you to learn and teach, to
build a community of like minded artists, and to pass along your knowledge to the world and be a spotlight on
the possibilities that the internet offers -- and to show what can be easily lost if we
choose not to fight to keep it.

Our next event is scheduled this September 21-23rd in Rockville, Maryland. We hope
that you can attend and help us grow this important conversation and be a part
of "Your Online Life, In-Person."

from the it's-a-problem dept

We recently covered how YouTube briefly pulled down the NASA-uploaded public domain video footage from the Curiosity rover's Mars landing. We were quite careful in the piece not to call it a DMCA takedown, because it was pretty clear that the DMCA was not involved. Unfortunately, many have been assuming that it was via the DMCA (and there are even lengthy comments discussing aspects of the DMCA). However, the DMCA had nothing to do with it. It appears that the whole thing was due to the way that YouTube's ContentID system works.

In response to all of this, the EFF has an important post highlighting the serious problems of an automated system like ContentID, which simply cannot understand algorithmically when content may be fair use or public domain. The EFF's fear is that the ContentID system doesn't have the (extremely limited, unfortunately) protections that the DMCA includes, and which were the focus of much discussion in our original post.

Content ID, by contrast, is an opaque and proprietary system where the accuser can serve as the judge, jury, and executioner. Worse, the person whose speech is being silenced has little recourse. The Content ID system tips whatever balance is present in the DMCA and allows even more pernicious forms of manipulation and abuse. In a Wired column earlier this year, Andy Baio enumerated some of the problems that YouTube users encounter:

But even without taking scammers into account, the premise behind Content ID is just incompatible with fair use and the public domain. It's impossibly complicated to define in a set of "business rules" for automated enforcement. Allowing Content ID robots to apply the rules leads to oversimplification that chills legitimate speech.

If anything, as Tim Lee's article explains, ContentID is actually demonstrating (quite clearly) why there are so many concerns about copyright takedowns. Copyright system supporters often insist that it's "easy" for sites to recognize and take down infringing content, and use any evidence of infringement as a damning sign of a site not doing enough. But, the reality on the ground is that making a determination on whether or not something is infringing is not nearly as easy as some people believe:

But in accommodating the demands of large copyright holders, YouTube has inadvertently reminded us all of the crucial point that flagging copyright infringement isn't nearly as simple as it is often portrayed by rightsholders. Even scanning videos for exact content matches that exceed certain thresholds (in order to preserve at least some fair uses) actually fails in all sorts of interesting ways.

Rather than acting as a neutral arbitrator between major content companies and independent organizations, YouTube's system favors the larger rightsholders that make use of its Content ID system over smaller creators. And because it's a private system that goes beyond the DMCA, the Content ID system is under no legal obligation to comply with the DMCA's safeguards and timelines.

ContentID certainly has some nice features -- including an innovative new revenue stream for content creators. But there are significant problems with it, concerning how it handles fair use and public domain material, which serve to highlight why the idea of a "silver bullet" solution for online infringement is so problematic.

from the you're-free-to-speak-now,-paul dept

You may recall who Paul Brigner is. He was formerly the Chief Technology Policy Officer for the MPAA, who at one point was tasked with standing up to pretty much every knowledgeable internet engineer in trying to defend why SOPA was both necessary and wouldn't be a technological disaster. This resulted in some wacky arguments. Back in January, he and I faced off on a panel in Washington DC the day before the Internet blackout, in which he tried to defend the MPAA's position on SOPA, though almost everyone who watched the panel noted that his statements appeared half hearted. It was little surprise two months later to see Brigner leave the MPAA to go work for the Internet Society, who fought strongly against SOPA. Since then, Brigner has more or less admitted that SOPA was a bad idea.

So it's not too surprising, but still a bit ironic, to see that Brigner has written the Internet Society's response to the White House's request for comment on IP Enforcement, and much of it explains why any approach that mirrors SOPA is completely unacceptable. From all indications, this has been Brigner's true belief all along, and you can see it in the depth of explanation and knowledge he puts into this letter as compared to his half-hearted "defenses" of the MPAA when he was employed there. What's striking, however, is how directly Brigner's comments today contradict the claims of the MPAA, which he was responsible for defending just a few months ago. It's almost a step by step argument against the MPAA's position: Brigner/ISOC are against mucking with DNS, are in favor of highlighting the importance of due process and protecting civil liberties and in favor of much greater transparency in policy making.

We are also of the opinion that any enforcement attempts – at both national and international
levels – should ensure and not jeopardize the stability, interoperability and efficiency of the
Internet, its technologies and underlying platforms. The Internet – a network of networks – is
based on an open and distributed architecture. This model should be preserved and should
surpass any enforcement efforts. For the Internet Society preserving the original nature of the
Internet is particularly significant, especially when enforcement is targeting domain names and
the Domain Name System (DNS) in general. There are significant concerns from using the
DNS as a channel for intellectual property enforcement and various contributions have been
made on this issue by both the Internet Society and the technical community. It needs to be
highlighted that from a security perspective, in particular, DNS filtering is incompatible with an
important security technology called Domain Name Security Extensions or DNSSEC. In fact,
there is great potential for DNSSEC to be weakened by proposals that seek to filter domain
names. This means that DNS filtering proposals could ultimately reduce global Internet
security, introduce new vulnerabilities, and put individual users at risk.

Our second recommendation relates to the legal tools that should be in place in any
enforcement design. ISOC would like to stress the absolute need for any enforcement
provisions to be prescribed according to the rule of law and due process. We believe that
combating online infringement of intellectual property is a significant objective. However, it is
equally important that this objective is achieved through lawful and legal paths and in
accordance with the notion of constitutional proportionality. In this regard, enforcement
provisions – both within and outside the context of intellectual property – should respect the
fundamental human rights and civil liberties of individuals and, subsequently, those of Internet
users. They should not seek to impose unbearable constitutional constraints and should not
prohibit users from exercising their constitutional rights of free speech, freedom of association
and freedom of expression.

As a general recommendation, we would like to emphasize our belief that all discussions
pertaining to the Internet, including those relating to intellectual property - both at a national and
international level - should follow open and transparent processes.

It's a great filing overall, and I appreciate the Internet Society's longstanding support for these key principles. Similarly, I think it's great that Brigner appears to have found employment much more in line with his own knowledge, experience and personal views -- but there is something ironic about seeing his name on a filing like this just months after he was tasked with arguing the opposite position.

Speaking of the White House's request for comments, that process is still open until this Friday. Later this week, I'll be sharing what I am submitting as well, but I urge many others to post thoughtful comments of their own. You can see what's already been submitted, and unfortunately, it appears that many (on all sides of the issue) submitted short/ranty "internet comment" style comments. I would urge that anyone seeking to submit a comment write out something a bit more thoughtful and detailed if you would like those in the White House to take them seriously.

from the ya-think? dept

Yesterday we noted that government officials were seeking to suppress video and images from the raid on Kim Dotcom's home. As a bunch of folks have been sending in all day, New Zealand's 3NEWS has revealed some of the footage in a video interspersed with video from the courtroom hearings and a tour they did a few months ago of the room in which Dotcom hid. It's interesting to note that, contrary to some reports of law enforcement having to "break in" to a "safe room," the reality turned out to just be a hidden room which Dotcom left unlocked. But, much more telling is the ridiculous level of force that the government used to arrest someone for copyright infringement -- which even New Zealand law enforcement admitted was "over the top."

Other reports have noted that Dotcom's security staff includes a police officer who could have been approached. Police also admitted that the effort was rushed and done with much less planning than they would have liked (which supports the notion floated by some that the timing was designed to happen right after the massive SOPA protests). Oh yeah, you'll notice in the video that two helicopters (and many police vehicles) were used -- but in court it was revealed that NZ law enforcement had said that "a full tactical response was not appropriate."

Perhaps they just wanted to look good on camera for the MPAA folks who were so infatuated with going after Kim Dotcom. Certainly, Americans were on the scene. NZ law enforcement admitted that the FBI came along for the ride...

from the roundup-ready dept

We've had plenty of stories over the years of Monsanto's incredibly aggressive stance when it comes to its "Roundup Ready" patents. The company has now been awarded $1 billion from Dupont for infringing on one of these patents. Now, here's a case where we're talking about competing companies, so perhaps no big deal, right? Except there's one tidbit here that makes this interesting: Dupont never brought the product in question to market. So the "damages" to Monsanto would seem to be minimal... except in a court of law apparently. According to Patently-O:

The damages theory was interesting. Since the accused product was not yet on the market, Monsanto did not seek any lost profit. Rather, Monsanto demanded a reasonable royalty for the research-use made by the defendants. Monsanto argued that the use of Monsanto's invention in DuPont's labs and Pioneer's test fields gave those companies an "improper head start" in making the GM seeds. The judge and jury agreed – if those companies wanted to build upon the invention then they should have first obtained a license. In the pharmaceutical world, 35 U.S.C. § 271(e) offers a research exemption for this type of activity. However, that exception does not apply here because of the low level of regulation over genetically modified food-products. The patent is set to expire in 2014. The patentee's right-to-exclusive-research supported by this case means that the 2014 date offers a starting-date for follow-on competitive research. Any actual products building directly upon the patented invention will arrive on the market sometime later.

Got that? Normally, companies can build on top of others' products as patents are set to expire, so they're ready to launch once the patent has expired. But, in this case, even trying to build new offerings in a lab for use later is apparently an insane billion dollar issue. Even worse, it means that any real competition, which will create more market-reasonable prices, gets significantly delayed as no one can prepare for when the patent expires.

Every couple years, when the Olympics roll around, there are stories like this one, about the volume of sexual activity in the Olympic Village among the athletes. And, if we go by condom count, the volume keeps on growing:

At the 2000 Olympics in Sydney, the Australian organizing committee distributed 45,000 free condoms in the village. Eight years later in Beijing, 70,000 condoms—labeled with the phrase ‘Faster, Higher, Stronger’—were exhausted and 20,000 more were ordered. This year in London, the Olympic organizing committee is providing 150,000, using special dispensers which contain a message promoting sexual health. Averaged among 10,490 athletes, that’s enough condoms for every athlete to have sex 15 times over the Olympics’ three weeks

And, of course, the Olympics found a sponsor to pay up for the privilege of being where the rubber meets the... well, you know. Durex is the official condom of the games. But... uh oh, call in the brand police! BMX cyclist Caroline Buchanan tweeted a photo of free condoms available in the Olympic Village which (*gasp*!) were not made by Durex!

And, indeed, the response from the Olympics was swift, as they began an investigation into this illicit behavior, because just think of all the problems if these athletes had sex with a non-sponsored condom! That cannot be allowed at all.

from the pack-of-highly----got-it dept

[UPDATE: Word is filtering back that threats are being directed at some of the authors pictured or quoted in this post. I will reiterate my comment I posted below about the threats, mainly: DON'T DO IT.

THIS DOESN'T MAKE ANYTHING BETTER.

Techdirt's not that kind of site. I know that because I've been reading this site for a half-decade and contributing to it for well over a year.

If you really just want to make a statement to these writers about how they've lost a customer because of their actions, there are several places to find the names involved. I'm not going to compile a list and post it here as some sort of vindictive troll bait.

IF YOU WANT TO DO THE RIGHT THING, SUPPORT THE BLOGGERS AND AUTHORS WHO DEFENDED LENDINK, AND PATRONIZE LENDINK IF DALE CAN GET IT BACK UP AND RUNNING.]

A bizarre thing happened late last week. A bunch of authors, playing Twitter telephone, managed to take down LendInk, a legitimate book lending site. (This "discussion" has spilled over to LendInk's Facebook page.) LendInk, a matchmaking site for Kindle and Nook users to "borrow" each other's titles, somehow found itself on the receiving end of an irate mob, who accused it of piracy and sent (at least according to the threats) several DMCA takedown notices its way.

As of last Friday, the site is down, presumably as a response to the heavy influx of angry traffic and DMCA notices. There has been no official word from the person running LendInk (listed here on an info page [via Google Cache] as Dale Porter, a disabled Army vet who seemed to be running LendInk as a hobby), but it pretty much seems to be how it looks: LendInk is down and may not be coming back.

Here's a bit of the "outrage," which mostly seems to be people lining up for their turn at the "I spot a pirate" mic:

Update: At least one of these writers (Imran Siddiq) has since admitted to misunderstanding what LendInk does, and retracted his statement.

A variety of misconceptions appear frequently:

1. This is a pirating site

A small amount of investigation shows that LendInk is (was?) not a "pirating" site. No copies of ebooks were stored on its sites. All LendInk did was connect people wanting to lend books with borrowers.

Using LendInk is as simple as could possibly be. Just browse the new and notable section, or search for the book you want. After checking it’s being offered in the format of your choice you put in a request and the lender has 48 hours to respond.

If you’d prefer to offer a book for someone else to borrow, it’s just a case of entering the title, author, a description and the format you own the book in.

2. All your books are available for free.

All your books only appear to be available. Because LendInk is an Amazon affiliate, any book title searched would be listed at the site. Clicking through would tell you whether the book was actually available (meaning someone had offered it to borrow). If the author or publisher has not authorized lending, then the Borrow button would be grayed out.

For people who are wondering why their book is there if it isn't lendable, or was lendable but now isn't, the answer is simple - that site lists every book for sale at Amazon or B&N. Every. Book. Did you notice that they also have links to buy the books? They make money through an affiliate program, if people buy books through their links. So they list EVERY BOOK. In fact, their website might be dynamic in that it generates a page whenever someone searches for a certain book.

I signed up and posted a book to share. I then searched on that book, found it, and said I wanted to borrow it. The site wasn't smart enough to know that I was the same person.... So what happens is the site sent me an email saying someone wanted to borrow my book, with "yes" and "no" links back to the site. When I clicked the "yes, I'll lend it" link, I simply got a page that said here's the name and email address of the person who wants to borrow your book.

No mystery. Nothing illegal. It lists every possible book. Some aren't lendable. LendInk is hoping you'll buy the books using its links, if you can't borrow them. End of story.

In addition to helping more readers read more books, LendInk also (via its affiliate links) helped sell books. Sure, every sale put 6% into LendInk's pockets, but it's no different than affiliate links at any other site. LendInk wasn't taking advantage of authors. Every time it made money, the authors made money.

If you publish through KDP (whether or not you are in Select) and are at the 70% royalty rate, then your ebooks are lendable. Period. End of discussion. If you're at the 35% royalty rate, then you can opt in to make them lendable.

This has NOTHING to do with the Kindle Owners Lending Library for Prime customers. This is not a "borrow" under KDP Select. This is merely lending a legitimately purchased Kindle copy.

Some Kindle books are lendable. When a purchaser buys a copy, they can choose to lend it to a friend. When they do this, the ebook temporarily disappears from their Kindle and appears on their friend's Kindle. After 2 weeks, it disappears from their friend's Kindle and reappears on theirs.

Here’s how it works: if you buy an ebook on your Kindle or Nook, you have the ability to lend it out to anyone else with a Kindle or Nook (Kindles lend to Kindles, Nooks to Nooks, etc.). This website connects ebook owners with others who want to borrow ebooks. So, instead of just borrowing from a friend, you can borrow even though you don’t know the person. All they do is match lenders and borrowers together. (They’re like a dating service.) The actual lending happens through Amazon, Barnes and Noble, or wherever the ebook was originally purchased, and that’s completely legit.

Basically, LendInk offered a legitimate service much like Lendle, but for whatever reason, a certain percentage of the writing community decided LendInk was offering pirated copies to everyone. Once a good witch hunt gets going, no one's going to stop until a witch is found... or created. Shawn Lamb of Allon Books crafts up a singular "witch" in an update to her gloaticle (Achievement Unlocked: Portmanteau'd!) "Pirate Site Sunk By United Broadside!":

IMPORTANT AMENDMENT: For those of you jumping on me and other authors from the take down of a site - know this - it was a copycat site! The subtle difference is found in the title "Lendink" with a small "i" not "Lendlnk" with an "l". They hijacked the name under the pretense of getting author's permission for pirating e-books. Collateral damage is regrettable, but we were only protecting our books, as giving permission to an unauthorized Lendink site would result in our books being removed from Amazon.

Lamb's bizarre theory of small "i" vs. big "I" site-jacking is just sad. There's simply no factual basis for this statement. Searches are not case sensitive and as for the URL, it's always going to be lowercase no matter how the site owner chooses to spell it. Attempting to justify your zealous overreaction by just making shit up isn't going to make your overreaction look any better.

The most popular piece of witch hunting equipment was this response many irate authors obtained from Amazon after informing it about LendInk's "piracy:"

Hello,

We have not authorized lendink.com to loan your book and have not provided your file to them.

If you've found your work available on an unauthorized website such as lendink.com, we suggest contacting that website to confirm your rights and request removal of your work. If you distribute your book through other sales channels, you might contact them to inquire as to whether they have authorized the inclusion of your book on lendink.com.

Our lending program allows a purchaser to lend a title once and does not allow the recipient to re-loan that book. For more information about Kindle book lending, check out this page:

This was (and still is) held aloft by many authors as evidence of wrongdoing. But it really isn't. It's nothing more than boilerplate. Here's author Amanda Brice (again), breaking this letter down:

This is a standard response from the customer service department, who is NOT the Legal deaprtment incidentally.

No, they did not authorize LendINK to lend books. HOWEVER, what LendINK is doing is the same as Lendle eBookFling or een the lending subforum right here on Kindleboards. It's no different than simply lending your book to your mom (which is 100% authorized through Amazon, btw). This is just doing it on a bigger scale.

Amazon did not provide your file to LendINK because nobody has provided any files to LendINK. LendINK doesn't actually have any files. They are simply the clearninghouse for people to meet up with others who want to borrow legitimate copies that they ahve purchased.

Amazon touts the fact that many of their Kindle books are lendable. Not able to be borrowed through the Prime library, but that customers can lend their copy ONCE to someone for up to 14 days. During the time the book has been lent, it becomes unavilable on the owner's Kindle and can only be read on the borrower's Lindle. At the end of 14 days, it disappears from the borrower's Kindle and reappears on the owner's Kindle.

This is not rocket science...

The Amazon Customer Service department is giving a stock response. It would be a different response if you actually spoke to someone in Legal, as Legal understands that this type of set-up is, in fact, tactitly authorized by the fact that they have created a system to allow for lending. (And from a policy standpoint, this type of system would discourage piracy.)

Before the site was taken/knocked offline, any one of these authors could have drawn the same conclusions as these helpful forum contributors, but most seemed to be caught up in the excitement of the hunt. An in-depth post by April Hamilton of the Indie Author blog points out everywhere these authors went wrong and how easily it could have been prevented. Fortunately, she also saved the pertinent parts of the LendInk FAQ, which cannot be reached by Google Cache or the Internet Archive:

Is the loaning of eBooks really legal? Isn't this the same as file sharing?

Yes, loaning of certain eBooks is legal and No, it is not the same as file sharing. The key difference between the two is that the loan status of an eBook is directly dictated by the publisher and file sharing is usually done without the publishers consent. Working with Amazon.com and Barnes and Noble, the publisher's make their eBooks available for loan under very strict rules. The actual book loaning process is handled by Amazon.com and Barnes and Noble, not by LendInk.

I am a Publisher or Author of a book on LendInk, how did you get a copy of my book?

First, let us explain up front, we do not have a copy of your book. This is actually a common misunderstanding of how LendInk functions. No book has or will be stored on any LendInk server, ever. The title of the book is entered by our members and the book information is fed to us by an automated link between LendInk and Amazon or Barnes and Noble. Our servers only store our member contact information and the basic book information such as the author, ASIN and book description. We do not even store the book cover artwork.

It's all said and done at this point. LendInk is dead, at least for the time being. It's bandwidth is burnt and if it ever gets back online, it's very likely going to be facing down DMCA takedown notices for content it never had. And for what? Meanwhile you've got authors patting themselves on the back for knocking the site offline, all because some authors just don't like the fact that someone enjoyed their work without paying for it. Here's a couple of lovely quotes:

Am I proud they have been shut down? Am I proud to have stood up for my legal rights as author? You betcha! If they were a legitimate site and had written consent from each and every author to display their work for free (forfeiting their royalty income as a result) then I doubt very much that the site would have suddenly disappeared overnight. I am tired of plagiarism, book piracy and cheap-*ss scum bags who won't part with a measly $2.99 or $4.99 to support authors and show respect for their hard work, not to mention the graphic artists, editors, photographers who also contributed to the birth of an author's ebook.

Up until now I was just getting fed up with folks listing my books on ebay, amazon and third party sites selling the createspace paperback version at highly inflated prices!

If you can't read your own Terms and Conditions and can't parse a website well enough to determine whether it's simply performing an affiliate search or offering up pirated goods, maybe you shouldn't be in the ebook business. And if you can't deal with a few unpaid readings, go shout at your local library or something else as equally alienating and useless. Because no matter how much you yell at people for sharing, you can't have all the money.

from the karma-slapped dept

Our first introduction with Zynga was back in 2009 when the maker of Mob Wars sued Zynga over its Mafia Wars game. Zynga was accused of copyright infringement and ended up paying a pretty penny. Later on in the year, Zynga turned around and sued Playdom over what it claimed was trademark infringement. Shortly there after Zynga was sued for trademark infringment over the name Mafia Wars. Then last year, Zynga decided to sue a Brazilian company, Vostu, for various claims of copyright infringment and even some claims that the company copied its entire business model. This lawsuit resulted in a very interesting ruling from a US Judge telling Zynga not to enforce its win over Vostu, because the US Judge wanted first dibs on the ruling. Remember this last case, because it is the most important one when reviewing this next lawsuit.

As outlined in our complaint, when The Ville was introduced in June 2012, the infringement of The Sims Social was unmistakable to those of us at Maxis as well as to players and the industry at large. The similarities go well beyond any superficial resemblance. Zynga’s design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social. The copying was so comprehensive that the two games are, to an uninitiated observer, largely indistinguishable. Scores of media and bloggers commented on the blatant mimicry.

Compare that to Zynga's statement about its lawsuit against Vostu:

Let’s be clear – it is one thing to be inspired by Zynga games, but it is entirely different to copy all of our key product features, product strategy, branding, mission statement and employee benefits lock, stock and barrel. We welcome Vostu into the arena of social games, but blatant infringement of our creative works is not an acceptable business strategy—it is a violation of the law.

In both statements, the accuser is stating that outright copying was taking place. That each accused game was a near replica of the other game. Such a claim from EA after Zynga made very much the same claims has got to be one of the largest legal karma slaps in history. One that Zynga will be very much lucky to walk away from.

Elsewhere in the filing, EA shows that Zynga's cloning is not limited to this one case. It lists numerous instances where Zynga had been accused of cloning other popular games. It lists the afore mentioned Mafia Wars, Dream Heights, Farmville and Zynga Bingo, all games that had been publicly accused of being clones. This was done to show that Zynga has an extensive history of cloning games.

EA's filing is also full of interesting screen shot comparisons in which it points out some of the more common similarities, such as the almost exact duplication of skin tone selections and personality types. EA even provided a video showing other similarities in animations.

Something to note in these examples is that they follow a very similar pattern to the filing Zynga made in its case against Vostu. In that filing, any time Zynga wanted to show off the similarities of the two games in question, it would show images that use as many similar elements arranged in as similar a fashion as possible. Something that EA does as well. This tactic is deployed as a method to project as much of a feeling of copyright infringement as possible. Unfortunately, it also clouds the fact that much of what is shown are in all actuality user made choices.

The Ville is the newest game in our 'ville' franchise -- it builds on every major innovation from our existing invest-and-express games dating back to YoVille and continuing through CityVille and CastleVille, and introduces a number of new social features and game mechanics not seen in social games today. It's unfortunate that EA thought that this was an appropriate response to our game, and clearly demonstrates a lack of understanding of basic copyright principles. It's also ironic that EA brings this suit shortly after launching SimCity Social, which bears an uncanny resemblance to Zynga's CityVille game. Nonetheless, we plan to defend our rights to the fullest extent possible and intend to win with players.

Zynga has been accused of copying so many games that they’ve sadly lost the ability to recognize games like ours that are chock full of original content and have been independently created. Vostu has 500 brilliant employees working night and day making hand drawings and writing proprietary code for online games that our 35 million users worldwide enjoy. Zynga’s anti-competitive effort to bully us with a frivolous lawsuit — especially when we have some of the same key investors — is pathetic. While Zynga plays games with the legal process we will continue focusing on using our substantial resources to create games that entertain our customers.

There are two key similarities between these two defensive statements. The first is that both companies make the claim that their work is original and built with the companies' creative talents. The other is both are claiming that the lawsuits are less about copyright and more about attacking a competitor. It really boggles the mind that a company like Zynga has missed the poetics of this situation.

While we have repeatedly stated that the practice of game cloning is something that can be dealt with outside of the legal system, it is interesting to see these two players go toe to toe. What makes this case even more interesting than a typical cloning case, as I have tried to portray, is that Zynga set itself up for this lawsuit. Not just by copying EA's game, but also by providing the exact kind of legal precedent EA needs to win. If Zynga is to defend itself in this case, it is in effect defending Vostu's actions. Something that Zynga probably isn't looking forward to.

More specifically, and by way of non-limiting example, the www.buzzfeed.com website uses an embedded flash player to present a first data type of a video file of "Boris v Romney" along with the presentation of advertising data of a second type that includes a static image advertisement for "Sour Patch Kids," for example.

For purposes of Claim 64, when a web browser of a client device displays the Defendant Website, the web server that serves the Defendant Website downloads both the video file (first data type) and the static image advertisement (second data type). The web server that serves the Defendant Website then executes executable code created by Defendant’s content authors/website administrators. The executable code includes both the first and second commands for the presentation of the first and second data types, respectively. The executable code couples the presentation of the first and second data types. That is, because the first and second data types are linked together via executable code, the presentation of the first data type causes the presentation of the second data type, automatically. The web server that serves the Defendant Website presents the first data type to the web browser of the client device. Namely, video file of "Boris v Romney" is presented along with the static image advertisement for "Sour Patch Kids." Thus, the presentation of the video file causes the presentation of the static image advertisement, though not necessarily always in that order.

Assuming that Buzzfeed hasn't changed its post, the description in the lawsuit appears to be in error. It claims that the web server downloads both the video and the advertisement. But, the video is an embed from YouTube and the advertising on the page is served from DoubleClick. In other words, the "Defendant Website" downloads neither of the items in question, contrary to the lawsuit's claims.

But, more to the point, the claims in the lawsuit seem ridiculous even if both were served by Buzzfeed. Having a static ad appear next to a video is not what this patent was intended to cover. Even the patent itself describes a system of playing a video advertisement next to a music file -- a completely different situation and purpose. Besides, while embedding videos certainly came out well after this patent came along, the idea of ads running next to videos is hardly new or innovative. The problem here seems to be that the patent examiners, Eric W. Stamber and Mussie Tesfamariam, let a ridiculously broad claim through that the company is now using to file lawsuits over something crazy obvious (having both videos and ads on the same page) that it contributed nothing to.

Buzzfeed is hardly the only lawsuit that Mobile Technologies LLC has filed either. The company has been a busy little bee. The sites it's sued include Wetpaint, Publishers Clearing House, Glam Media, Evolve, BabyCenter, Hollywood.com, DailyMotion, ProjectPlaylist, Justin TV and Radar Online, among many others. Oddly, I see that one of the inventors listed on the patent is Lior Cohen, which is the name of Warner Music's CEO. I'm going to assume that this is not the same Lior Cohen, however. The patent was originally held by Adware LI Inc., and was then assigned to Everad, who later assigned it to EIP Company LLC. There isn't an official assignment to Mobile Technologies LLC in the USPTO database, but that doesn't mean anything. It could not yet be recorded or there may be shell companies involved or a licensing deal or who knows what. Either way, it's yet another example of a mysterious patent holder with a broad patent using it against something completely different than what the patent is supposed to be about, and going after a ton of companies in the process.

from the features-100%-more-'beekeeper-sex'-than-the-closest-competitor dept

One of the old adages of publishing is "know your audience." In today's ultra-crowded digital markets, that adage is more important than ever. There's money to be made simply by following trends, and if you can get over any hangups about "artistic integrity," you can ride the wave until it collapses.

"It all started with Scam School Book 2 – Brian’s magic book," Justin said. "He found out as he was pushing that book that the top ten in iTunes was all erotic fiction. Even to the point where established authors, like Janet Evanovich, couldn’t break into the top five of the iBooks store—because of all the erotic fiction that was capitalizing on Shades of Grey. And he thought—we could do that!"

The twist here is that Brushwood and Young didn't write a single word. The entire book is compiled from the contributions of their listeners. Held together only by the appearance of the same main character in every chapter, The Diamond Club has more in common with anthologies of Penthouse Letters (such things actually exist) and its inspiration, Naked Came the Stranger, than an actual cohesive novel. No matter. It crashed the iTunes best-seller chart, placing at #4 -- directly following the Fifty Shades of Gray trilogy.

The men behind the book claim to be trolling, but the sales seem to indicate that the book's audience stretches further than those who are in on the joke. Certainly some people aren't aware of the origin, but it's listed as erotic fiction and delivers the payload expected. Without having to spend a lot of time on character development, plot pacing or "compelling" dialogue, it likely delivers on the "erotic" side more efficiently than other books in the genre.

Justin said, "It’s a hoax in that we are not erotic fiction writers. We don't genuinely think it’s any good. But I will stand behind our product that it delivers what we believe to be the most important component in this genre: sex."

And the book does deliver. Though it has over 1,000 user reviews, only one of them calls out the hoax. "If you look at it, right now," Justin said, "There’s only one comment that says it’s a joke. One review says: Don’t pay money for this. It’s what they want."

Some may see this as yet another indicator of how opening ebooks to the masses is going to result in piles of lousy writing popping up everywhere. Maybe so, but I just can't see it as being solely a bad thing. If the customers are happy with their purchases, it doesn't seem to be much of a problem. The advantage here is a ridiculously short turnaround time that would be nearly impossible to emulate running through a second party, which allowed The Diamond Club to take full advantage of a trend before the audience moved on.

The other big takeaway from this? Another new way to connect with your fans, which springs out of the duo's understanding of both their core podcast audience and the ongoing disruption in content creation:

Users are the content creators today – so they made the listeners of their podcast the authors.

Nothing builds loyalty like including your fans in the creative process, and nothing builds word-of-mouth faster than loyal fans.

Used-game sellers generally, and Game Stop specifically, have been a constant target of game producers. They claim that used game sales keep people from buying games in their awesome new shrinkwrap. As the IGN article notes, this is a case of only looking at one side of the coin (those that are going to Game Stop to buy used games) without acknowledging the other side (those that are going to Game Stop to trade in used games). The article expands on this:

"GameStop’s bosses are obviously tired of hearing about how used games are killing gaming, about how unfair they are on the producers of the games who get nothing from their resale.

One astonishing stat is repeated by three different managers during presentations. 70 percent of income consumers make from trading games goes straight back into buying brand new games. GameStop argues that used games are an essential currency in supporting the games business."

So, if that number is correct, the interest in used games by some consumers is what drives the purchase of new games by other consumers. This is similar to what we've seen in book sales, where used books fuel the new book market. Being able to trade in games doesn't simply result in money collected for the retailer; it results in money collected by game producers as well. This goes beyond simply mentioning first sale rights. If used games are fueling the purchase of new games, what are producers complaining about? If Gamestop is to be believed, it's a significant part of the new games market:

"GameStop says 17 percent of its sales are paid in trade credits. The implication is clear - if the games industry lost 17 percent of its sales tomorrow, that would be a bad day for the publishers and developers."

So maybe game producers should be thanking Game Stop instead of griping.